I worked with John Spinello while he was at DEP (before he went to EPA with Christie Whitman) he is highly competent, but has been known to be an “environmental hitman“.

So let’s take a look at a US Senate investigation report that documents how an “environmental hitman” operates.

Spinello was with DEP while I was there (circa early 1990’s). He later went on to work in the Governor’s Office as legal counsel to former NJ Governor Christie Whitman. In 2001, when Whitman was appointed as the Bush EPA Administrator, she brought Spinello to EPA as legal counsel.

[Note: Whitman also brought another of her NJ legal counselors, Bob Fabricant, to EPA.

Fabricant is the Bush EPA lawyer who wrote the legal opinion reversed by the US Supreme Court in the groundbreaking Massachusetts v. EPAcase. Fabricant argued for the big polluters, concluding that green house gases were not “pollutants” under the Clean Air Act and therefore could not be regulated by EPA. In an historic decision, the Supreme Court reversed Fabricant’s pro-industry analysis. (see Robert Fabricant’s August 2003 Memorandum denying that the EPA has authority to regulate carbon dioxide under the Clean Air Act. Download PDF. I guess Fabricant joins the infamous lawyer who argued that black children could be separate and equal in segregated schools in the equally historic 1954 Supreme Court Brown v. Board of Education case.

Spinello’s role in “playing fast and loose with the facts and the law” was explored at length in a fascinating US Senate investigation report of how political pressure forced EPA to reverse its own decision to declare a public health emergency in Libby Montana. A careful review of EPA staff interviews and Spinello’s emails reveals that he was deeply implicated in the scandal and worked between EPA and OMB to craft a bogus and discredited legal theory (see paragraph #6 on pages 31-35 – For full Senate Report, see: United States Senate Committee on Environment and Public Works …

The Senate Report found (verbatim findings):

1) A public health emergency exists in Libby Montana.

2) EPA Region 8 and Administrator Whitman concurred in a decision to declare a public health emergency in April 2002.

3) the [White House’s] Office of Management and Budget (OMB) interfered with EPA’s decision-making process and … discouraged EPA from declaring a public health emergency.

4) EPA’s claims … stem from a concerted effort to avoid declaring a public health emergency, despite evidence that the declaration was warranted and the lack of factual basis [to support EPA’s claims].

5) the residents of Libby were denied medical care from the federal government to which they were legally entitled.

6) EPA has delayed finishing a toxicity assessment of the Libby asbestos for over six years.

7) EPA provided misleading information to the residents of Libby.

8 ) EPA has failed to address the national issue of asbestos contaminated Zonolite Attic Insulation. [Note: this relates to a criminal investigation involving a notorious WR Grace asbestos site in Hamilton, NJ -see “Legislature to Probe Toxic Collapse in NJ“]

“What we have found is a pattern of intervention from OMB, the White House, and political appointees at EPA that undermined cleanup efforts at Libby, delayed necessary toxicity studies, prevented a Public Health Emergency declaration, and ultimately left the people of Libby – people like my friend Less exposed to dangerous amphibole asbestos with no long term medical care.

EPA and OMB have played fast and loose with the facts and the law. They have put saving money over saving lives. They have failed the people of Libby. And I am outraged.

EPA’s own documents show that a public health emergency exists in Libby. Over 200 people have died, and over 1000 more are sick. No other Superfund site in the country has seen this kind of devastation. In the words of an EPA Region 8 attorney, “EPA rarely finds health problems of the magnitude of those found in Libby. If a precedent is to be set in using this section of CERCLA [to declare a public health emergency], Libby is an appropriate place to do so”.

Our findings show that top level officials at EPA, including then Administrator Whitman appear to have approved of the plan to declare a Public Health Emergency. EPA staff prepared briefing materials for Administrator Whitman and drafted press releases announcing a Public Health Emergency declaration. And as Commissioner Roose will testify later in this hearing, Administrator Whitman herself committed to declare a Public Health Emergency at a town hall meeting in Libby.

Tragically for the people of Libby, the plan to declare a public health emergency was derailed following a top level meeting on April 16th of 2002 between EPA, OMB, CEQ, and the White House.

Concurrent with this meeting, EPA’s Office of General Council at the direction of the Administrator’s Office developed a different legal theory [Note: Spinello served at EPA OGC] for allowing EPA to remove some Zonolite Attic Insulation without declaring a Public Health Emergency. Under this legal theory, EPA claimed that the insulation in homes in Libby was not actually a product because W.R. Grace had given away waste vermiculite, which residents put in their attics instead of store-bought insulation.

There was no factual basis for this claim. In fact, it’s completely bogus. An attorney in EPA Region 8 noted, “there is nothing in our record to indicate that these giveaways were put in people’s attics.”

The political appointees at EPA, OMB, and the White House ignored officials on the ground, ignored the law, and ignored the health needs of Libby. Had EPA declared a Public Health Emergency, the residents of Libby would have been entitled to medical care. They would have been provided with basic help, like oxygen, which many residents need but cannot afford.”

The practice of lying to the people of Libby was not Whitman’s first fib and it reminded me of some history with Whitman.

As NJ Governor, Christine Todd Whitman certainly shocked my conscience as a DEP professional in 1994 when she lied to NJ residents about health risks – particularly to pregnant and nursing women and children – from toxic mercury contamination in NJ freshwater fish (for details of that episode see “New National Mercury Research Confirms NJ Experience”)

“The EPA is designated as the agency in our country to protect human health and the environment, and is mandated to work for a cleaner, healthier environment for the American people. The agency enforces regulations regarding pollution in our environment and the presence of toxic and hazardous substances, and has endorsed and promulgated regulations for hazardous and toxic materials, such as asbestos and lead. As head of the EPA, Whitman knew of this mandate and took part in and directed the regulatory activities of the agency. Given this responsibility, the allegations in this case of Whitman’s reassuring and misleading statements of safety after the September 11, 2001 attacks are without question conscience-shocking. ”

“No reasonable person would have thought that telling thousands of people that it was safe to return to Lower Manhattan, while knowing that such return could pose long-term health risks and other dire consequences, was conduct sanctioned by our laws. Whitman’s deliberate and misleading statements made to the press shocks the conscience. (Benzman v. Whitman, No. 04 Civ. 1888, 2006 WL 250527 (S.D.N.Y. Feb. 2, 2006). That District Court decision was reversed by the Appellate Court see this)

To wrap up, lets get back to Spinello.

Shamelessly, after serving as an “environmental hitman” inside EPA by directly advancing a bogus legal theory that overrode EPA lawyers and scientists for the benefit of corporate killer WR Grace, Spinello took the revolving door. As recently as July 21, 2008 and July 28, 2008, he represented corporate interests at EPA Science Advisory Board followup meetings on asbestos. Spinello has no shame, and affirmatively defends corrupt revolving door practice:

“It’s important to have people in government who can reflect the perspective of the private sector EPA regulates,” said John Spinello, a Bush appointee who served as the agency’s associate deputy general counsel until he resigned last year to take a job as a corporate lawyer in New Jersey (Newsday “Erasing the Rules“)

So, does “three strikes and you’re out” apply to high level government officials like Whitman and Spinello?

How are they allowed to maintain a credible voice in environmental policy after such gross betrayals of the public trust?

How do these people sleep at night?

[PS – I should have mentioned that the St. Louis Post Dispatch broke this story way back in 2002:

WASHINGTON – The Environmental Protection Agency was on the verge of warning millions of Americans that their attics and walls might contain asbestos-contaminated insulation. But, at the last minute, the White House intervened, and the warning has never been issued.

A public health emergency declaration had never been issued by any agency. It would have authorized the removal of the disease-causing insulation from homes in Libby and also provided long-term medical care for those made sick. Additionally, it would have triggered notification of property owners elsewhere who might be exposed to the contaminated insulation.

We are seeking nominations from readers for “The Worst Place in Jersey”.

While I was with NJ DEP, I ran a program where we sought nominations from citizens to increase protections for their local streams – we were very successful (if you’re interested in this initiative, I suggest you read this DEP webpagenow, before the Ministry of Truth over there finds out that it still exists. Even they will figure out that it legitimizes their worst critic and exposes serious program weaknesses – when they do, they will take that page Down Orwell’s Memory Hole):

To date, DEP has received over 47 public nominations from individuals, groups and public entities for Category One designations. These public nominations include approximately 337 named rivers and streams equaling 7,655 linear waterbody miles and 23 reservoirs, lakes and ponds representing 6,593 surface acres. A map of the public nominations is available atwww.nj.gov/dep/antisprawl/c1map.html.

DEP has not had the opportunity to fully evaluate all the public nominations for Category One but will seriously consider all public nominations over the upcoming months. DEP is continuing to accept public recommendations for Category One water designations. Public recommendations for Category One water designations should be sent at this time to Bill Wolfe.

Anyway, I thought I’d take that same approach – sort of start a Wiki of NJ’s Worst Places.

Comment here or shoot me an email nominating your NJ nightmares – if possible, include a photo and a brief explanation. I will visit the place, take photo’s and post them here. Depending on responses, at some point I’ll put together a list and we can vote on the worst of the worst – democracy in action.

Who knows, if this thing takes off, we just might shame the responsible corporate and government officials to improve the conditions we expose.

Today, I will nominate the area around Doremus Avenue in Newark surrounding Essex County Jailas “The Worst Place in Jersey”. Take a look at all these toxic emission sources – and this is not counting the Port, which creates regional impacts. All that toxic pollution isn’t just blowing over to Staten Island! Inmates and staff of Essex County jail are being “air boarded” every day! (We’ve heard about episodes of waterboarding at Guantanamo and torture at Abu Ghraib, but not about daily “toxic air boarding” at Essex County Prison.)

No later than June 30, 2008, the department, and any other State agencies, as appropriate, shall prepare a report recommending the measures necessary to reduce greenhouse gas emissions to achieve the 2020 limit.Â The report shall include specific recommendations for legislative and regulatory action that will be necessary to achieve the 2020 limit.

The timing of DEP’s release speaks for itself.

I will touch briefly on just 2 critical issues to illustrate fundamental flaws in NJ and DEP’s program and show why they can not achieve their stated emissions reduction objectives.

On June 26, 2009, the U.S. House of Representatives passed the Waxman-Markey climate change bill — the American Clean Energy and Security Act (H.R. 2454)— by a narrow vote of 219-212. As voted on by the House, this bill would amend the Clean Air Act to enact a cap-and-trade program (see Part VI.B.3) to reduce emissions of multiple greenhouse gases, including carbon dioxide, methane, nitrous oxide, sulfur hexafluoride, some hydrofluorocarbon emissions, perfluorocarbons, and nitrogen tetrafluoride. Each gas would be given a carbon dioxide equivalent value, and the emissions trading program would apply to electricity-generating and other industrial sources that emit more than 25,000 tons per year of carbon dioxide equivalent. The program would seek a reduction of 17% from 2005 emissions levels by 2020 and an 83% reduction by 2050. Until 2025, electric and natural gas utilities and home heating oil suppliers would receive 55% of the emissions allowances for free, to protect consumers from energy price increases.

In addition, the bill would repeal the EPA’s authority to regulate greenhouse gas emissions through the Clean Air Act’s existing programs. (link – scroll down)

That issue went before the US Supreme Court in the “Massachusetts v. EPA” case, where the Court decided the question of whether GHGs are “pollutants” under the federal Clean Air Act and therefore whether EPA has authority to regulate GHG emissions. (see below chronology).

NJ participated in this historic decision.

In Feb. 2003, NJ Attorney General Harvey joined Massachusetts and other states in threatening to sue EPA for failure to regulate GHG’s.

Shortly thereafter, in August 2003 then EPA Administrator Christie Whitman’s Chief Counsel, Bob Fabricant, (who had been her counsel in NJ) wrote a legal opinion that reversed the Clinton Administration’s legal position and concluded that EPA did NOT have that authority.

In November 2005, New Jersey adopted a regulation under the authority of New Jerseyâ€™s Air Pollution Control Act to classify CO2 as an air contaminant. The adoption was published in the New Jersey Register on November 21, 2005. This rule enabled the State to implement its responsibilities under RGGI and to enact additional rules to reduce CO2 emissions from other sectors as necessary. Prior to this, in 2003 New Jersey added CO2 and methane to its emission statement program reporting requirements. The emission statement program requires the annual reporting of emissions of 50 air contaminants from approximately 600 of the largest stationary sources of air pollution in New Jersey.”

DEP has done NOTHING with this regulatory authority for 5 years now (other than to monitor emissions – DEP has set no emission reduction requirements in permits and no emissions fees, like for most other major pollutants).

I argue that this is because the NJ Global Warming Response Act revoked DEP authority – something Lisa Jackson was never held accountable for -Â just like the Obama/Jackson supported Waxman-Markey bill seeks to do to EPA at the federal level. This would be a disastrous mistake.

This key fact curiously is not mentioned. Worse, the Report misleadingly claims that RGGI reductions are regional and difficult to allocate to a state. Both omission and misleading claim are evidence that DEP is seeking to suppress critical NJ RGGI facts.

4. The RGGI agreement provides for a 10% reduction between 2014-2018 –

I am not absolutely sure what the baseline for the 10% is but it could be from 19.8 MMT – 22.7 MMT (or slightly more) – so that 10% reductionÂ under RGGI comes to less than 3 MMT.

So where is NJ going to get 8.5 MMT from RGGI?

That is not possible to understand from this Report – which to me shows it as a sham.

To be honest, in this post-modern age of skepticism (some say cynicism) and low expectations (some would say disillusion), perhaps all that is no big surprise and disappointment to many.

But, virtually no one is focused on a more insidious form of corruption – intellectual corruption and political cowardice – and in such high minded places, like the Dodge Foundation and NJ advocacy groups.

The “Dear Santa” letter seeks to find “common ground”. The letter purports to be the product of 15 housing, transportation, environmental, and planning groups. It is intended to convey a “policy vision” and provide the incoming Christie Administration with a “policy platform”.

A Dodge blog post distributed the letter. That post rather arrogantly emphasized the intellectually high minded tone of the letter. This was not done as some genteel gesture, but specifically to attack and dismiss what Dodge views as the unseemly advocacy of some. In Dodge-speak:

I hope, too, that you take note of the tone of the letter. It is not a demand that the incoming Governor forsake his agenda for some righteous social and environmental agenda; rather, it is an invitation for the Governor-elect to call upon these resource and planning experts to help him meet his agenda and New Jerseyâ€™s challenges

Right.

We wouldn’t want to make any “demands” of our elected officials – that’s too democratic. The rabble must know their place! And of course we must always defer to “experts”, never be”righteous” in our pursuits, and always use a civil tone in addressing our elite betters (and wash our face and shine our shoes).

In terms of the stale content and vague policy elements of the so called “policy platform letter to Governor-elect Christie” – which took only “months” (and how much Dodge money?) to develop -Â I feel compelled to note the following to inject just a little political reality into the lofty deliberations of the Dodge funded empire:

Affordable Housing – Governor Christie has pledged to “gut COAH” (while alleviating the constitutional municipal obligation and supporting low cost policies to transfer that obligation from the predominantly white suburbs to the predominantly black urban core). We all know that this advances the economic and politicalÂ interests of an exclusionary and racist elite suburban white constituency that has worked tirelessly for years to keep NJ’s poor and minority populations segregated in NJ’s urban ghetto’s.NJ is one of the most segregated states in the country – by income and race.

Transportation – Christie has sworn not to increase the gas tax -we all know that this is a reckless, ideologically driven, reflexive anti-tax policy which is virtually certain to bankrupt the NJ Transportation Trust Fund. How could you possibly look the other way on this issue?

Common Ground – Christie promised to cut the income tax of NJ’s wealthiest – at a revenue loss of $1 billion at a time when the State is faced with a $4 billion structural budget deficit. Major education, health care, and social programs are being slashed. There can be no common ground when the wealthy are granted tax cuts while all others suffer.

It must be nice to issue such silly and sanctimonious edicts from the lofty and well fed offices of Dodge Foundation Morristown Offices.